BIODIVERSITY: OPPORTUNITIES AND DILEMAS
Senator Marina Silva, National Congress of Brazil, April 2002
CONTRADICTION
Brazil is the country with the most biological diversity in the world. It is estimated that we have between 15% to 20% of all the planet's biodiversity. There are 55,000 different species of plants in Brazil (22% of the world's total), 524 mammals (131 of them endemic), 517 amphibians (294 endemic), 1,622 birds (191 endemic) and 468 reptiles (172 endemic), in addition to 3,000 species of freshwater fish (three times more than any other country) and probably between 10,000 to 15,000 insect species (many in families that are yet to be described). In the Amazon region alone we have 26% of the world's remaining tropical forests. Along with 15 other countries, including India, we account for 70% of the world's animal and plant species, according to data in the Green Book, published by the Ministry of Science and Technology and the Brazilian Academy of Science.
In 1992, Brazil hosted the UNCED and signed the Convention on Biological Diversity, which was ratified by the National Congress two years later (1994). The next year, in 1995, I presented a bill in the Senate aimed at regulating, in particular, articles 8(j) and 15 of the Convention, regarding Access to Genetic Resources. After evolving with public debate and the work of the bill's rapporteur, Senator Osmar Dias, it was approved by the Senate in June 1998 and immediately sent to the House of Representatives. There the process stopped and our bill, along with those of Federal Deputies Jaques Wagner (of the Workers' Party in Bahia) and Silas Câmara (PTB, Amazonas), were never discussed or voted. There is also a bill presented by the Executive Branch that would amend our Constitution to make the country's "genetic assets" the property of the Union.
Since 1995, scientists, social and environmental militants, business representatives and leaders of social movements have been discussing this law, while discussions have also been spreading among traditional communities that possess knowledge about the flora and fauna. This growing interest in Brazilian society relates directly to international discussions and negotiations on the Convention and also on other agreements, particularly the TRIPs Agreement on Trade-Related Aspects of Intellectual Property Rights. Brazil's Ministry of Foreign Relations recently presented a document that seems to reflect much of this debate that the Brazilian Congress and society have been promoting in recent years. In it, the government proposes changes to TRIPs article 27-3(b) as part of ongoing negotiations in the World Trade Organization (WTO), to create a sui generis regime to protect traditional knowledge associated with genetic resources. It proposes an international legal provision to control and repress biopiracy, as well as assuring Prior Informed Consent as a pre-condition for access to traditional communities, be they Indians, farmers or other communities.
In December 2002, shamans from several indigenous communities around the country drafted an important document addressed to WIPO (World Intellectual Property Organization). In the form of a letter, the indigenous leaders highlighted 16 aspects and demands that directly question all forms of patents derived from traditional knowledge, demanding that the government approve a new Indigenous Societies Law and allow for participation in national and international decisions on biodiversity and on related traditional knowledge. The key aspect of that gathering in São Luis, Maranhão, is that it was promoted precisely by the National Industrial Property Institute (INPI), which expressed its own agreement with the letter.
Therefore, considering the country's megadiversity, which it is conserving despite many difficulties, and also the many initiatives and work in the National Congress and by various segments of society, including scientists and even some reasonable positions taken by certain sectors of the government itself, it is shameful to observe that Brazil still does not have a Law to regulate access to its genetic resources and to associated knowledge.
PROVISIONAL MEASURE: Sloppy patchwork
Running roughshod over the process underway in the Congress, the Federal Executive on June 29, 2000 issued its own version of the law by decree, in the form of a "Provisional Measure", whose current version dates August 23, 2001. Part of that Provisional Measure was implemented through the formal Decree N. 3945, on September 29, 2001, creating the Genetic Assets Management Council.
This precarious legal instrument has caused several problems and is problematic for discussions both inside Brazil and internationally.
1. The BioAmazônia/Novartis Agreement: When the federal government published this Provisional Measure in June 2000 it was immediately nicknamed the "Novartis PM," due to a cooperation agreement between the Brazilian Association for the Sustainable Use of Biodiversity in the Amazon (BioAmazônia) and the Swiss transnational Novartis Pharma AG, signed just a month before the PM was issued.
That agreement provided for the large-scale transfer abroad of extracts derived from the Amazon's biodiversity, allowing Novartis exclusive rights to patent and control the products developed from microorganisms, fungus, plants, etc. collected by BioAmazônia.
As soon as it was signed, the BioAmazônia-Novartis agreement was severely criticized in public, even by the Minister of the Environment, José Sarney Filho, who considered it harmful to the country's interests and recommended that it be suspended, particularly because Brazil had no legislation in force with which to guarantee its sovereignty over its own genetic resources.
2. Authoritarian and temporary: Like hundreds of other PMs issued by this government, this one was aimed at serving immediate special interests and overruns the legitimate legislative process. Until mid 2001, these measures were only valid for 30 days, and could be republished and emended every month as long as the government felt the need.
3. "Legis-piracy": It is based on the bills under discussion in the National Congress, but ignores several of their most important provisions.
4. Sloppiness: The Provisional Measure implicitly leaves room for communities residing on officially demarcated indigenous lands to allow access or not to their genetic resources. But the document replaced the internationally recognized term Previous Informed Consent with the word "anuência" (similar to acquiescence), which in addition to being vague cannot even be faithfully translated into English, the main language for international negotiations.
5. No farmers: The PM does not recognize the rights of farmers or farming communities who manage the biodiversity that actually feeds us, in addition to dressing and healing us.
6. No genetic resources: The other widely recognized concept of "genetic resources," which is also in the Convention on Biological Diversity, as well as in the laws of Costa Rica, the Andean Community, the Philippines and others, was also replace by the very ambiguous term "Genetic Patrimony", defined merely as information of genetic origin from any organism. It is absolutely unclear whether the term "patrimony" refers to a collective heritage or to the net assets of a private owner, although the government's attempt to have it defined in the Constitution as property of the Union makes it clear that the latter definition (assets) is the closest to the real intentions behind this pseudo-"law".
7. Ineffective: Under the Constitution, a Provisional Measure can only create administrative (but not criminal or civil) penalties for violators. We need a real Law for the country to have the power to enforce the rules and repress the biopirates, who have simply ignored this PM and the Management Council. Indeed, the text of the PM has no reference at all to which government agencies are responsible for its enforcement. This gap is there because even if there is any control over implementation, no one has the police power to bring violators to court.
8. Biocrats: Under the September 2001 Decree that created the Council, there is no room for the participation of civil society, the scientific community or the communities that have rights at stake in the decisions the Council will be making. The Council may set criteria for creating data banks to register information on associated traditional knowledge, with no participation by or even consultation with local and traditional communities and it can do this immediately, even before reaching a consensus between the government and social and scientific organizations on the kind of rules needed for this highly contentious kind of activity.
Finally, none of the PM's provisions guarantee that access to genetic resources (or assets, by whatever definition) will be carried out with respect for traditional knowledge, with conservation of our biological heritage or with any kind of social control, as preached by our own Foreign Relations Ministry at international meetings and negotiating sessions. The PM merely facilitates access and only assures gains for the government itself from the concessions to be granted by the Council.
This situation is rooted in a conflict and intense competition for control over knowledge between private corporations driven by the chance to profit from sales to rich markets and the public interest of populations who occupy the physical spaces richest in biological diversity and who possess knowledge about their resources, but whose basic rights are not respected.
SOME PROPOSALS
§ In addition to giving full support to the Shamans' Letter (below) and to all initiatives aimed at promoting and deepening this discussion among communities and peoples rich in bio-genetic resources and associated knowledge, at community, regional, national and international levels, we offer to contribute towards efforts to hold a Pan-Amazonian Conference to discuss common rules for access to biodiversity in all the nations that share the Amazon, and to formulate a Pan-Amazonian Treaty on biological and cultural diversity. This proposal relates particularly to legal initiatives now under discussion in Peru and Chile.
§ In November 2001 we held a public hearing in the Senate's Social Affairs Commission, to relaunch debates in the Congress, and we plan to hold another hearing in 2002, this time involving scientists and businesspeople.
§ Efforts to find fairer and more harmonic development solutions for access to biodiversity and to community knowledge will necessarily lead to (1) greater value being placed on the "commons" and on shared uses, not only in the text of the law but in governmental actions overall, and (2) an understanding that territories, natural resources and knowledge are above all the responsibility of the communities that possess them and that it is therefore up to their own organizations to implement discussions on these issues with their local grass roots.
§ We must disseminate, stimulate and follow up on this discussion along with our communities and regions. In this sense, we must multiply the experience of the Shaman's gathering in São Luiz, Maranhão, as was done at the First Gathering of Forest Curers, which brought together shamans, folk doctors, medical doctors and phytotherapists in the Juruá Valley, Acre and whose resolutions were sent to the shamans in São Luiz.
§ This May, we will be welcoming in Acre representatives of farming, indigenous and other traditional communities from around the world at the International Workshop on Agro-Biodiversity, organized by international networks fostered by GRAIN (Genetic Resource Action International). This will be another excellent chance to announce to Brazil and to the world proposals of interest to those who, despite the unsustainable development model currently reigning in much of the world, have been able to conserve and make sustainable use of the natural resources they received from the Creator.
Source of original translation (slightly corrected here): Friends of the Earth - Amazônia Brasileira
http://www.amazonia.org.br/english/guia/detalhes.cfm?id=647
[Original in Portuguese:
http://www.socioambiental.org/website/noticias/noticia.asp?File=Indios\2001-12-11-13-51.html;
photo image of original, with signatures: http://www.amazonia.org.br/pdf/carta_paje.pdf]
São Luís Letter
The document is the result of a meeting which took place in early December, 2001 in São Luis, State of Maranhão, Brazil. The event was organized by the National Industrial Property Institute. The so-called São Luis Letter makes 16 suggestions about how to better protect the age-old knowledge of the Indians and to avoid biopiracy.
Shamans from 20 indigenous tribes will send suggestions to the Intergovernmental Committee of the World Intellectual Property Organization (WIPO), an agency of the United Nations.
"We are sure that our recommendations and proposals will be accepted in the interest of humanity," says the letter:
LETTER FROM SÃO LUIS DO MARANHÃO
We, representatives of indigenous peoples in multicultural Brazil where there are 220 peoples speaking 180 distinct languages and occupying 12% of Brazilian territory, gathered in São Luis do Maranhão from December 4-6, 2001, to discuss the theme "Indigenous Knowledge and Science and Industrial Property" at the invitation of the National Industrial Property Institute (INPI), declare:
1. That our forests have been preserved thanks to our millennial knowledge;
2. As indigenous representatives, we are important in the process of discussing access to biodiversity and traditional knowledge because our lands contain most of the world's biodiversity, around 50%, which has a great value in social, cultural, spiritual and economic terms. As traditional indigenous peoples who inhabit diverse ecosystems, we have knowledge about the management and sustainable use of this biodiversity. This knowledge is collective and is not a product that can be commercialized like an ordinary piece of merchandise. Our knowledge of biodiversity cannot be separated from our identities, laws, institutions, value systems and our cosmological vision as indigenous peoples;
3. We recommend that the Brazilian Government create a space for the participation of representatives of indigenous communities in the Genetic Assets Management Council;
4. We recommend that the Brazilian Government create laws to regulate access to genetic resources and traditional knowledge in co-operation with indigenous communities and organizations;
5. We indigenous representatives strongly affirm to governments and international organizations our right to fully participate in national and international decisions about biodiversity and traditional knowledge, such as the Convention on Biological Diversity, the World Intellectual Property Organization (WIPO), the United Nations Commission on Trade and Development, the World Trade Organization, WIPO's Intergovernmental Committee on Intellectual Property related to Genetic Resources, Traditional and Folk Knowledge, among other organizations.
6. We recommend that all nations approve the United Nations Declaration on Indigenous Rights;
7. As representatives of indigenous peoples, we affirm our opposition to any form of patenting resulting from traditional knowledge and request the creation of punitive mechanisms to prohibit the theft of our biodiversity;